State v. Kuta, ___ N.W.2d ___ (NE 9/14/2004)

Citation___ N.W.2d ___
Decision Date14 September 2004
Docket NumberNo. A-03-1275.,A-03-1275.
CourtUnited States State Supreme Court of Ohio

1. Criminal Law: Judgments: Appeal and Error. While in a bench trial of a criminal case the court's findings have the effect of a verdict and will not be set aside unless clearly erroneous, an appellate court has an obligation to reach an independent, correct conclusion regarding questions of law.

2. Evidence: Convictions: Appeal and Error. In determining whether evidence is sufficient to sustain a conviction in a bench trial, an appellate court does not resolve conflicts in evidence, pass on credibility of witnesses, evaluate explanations, or reweigh evidence presented, which are within a fact finder's province for disposition.

3. Corroboration: Witnesses: Testimony. Corroboration is sufficient, for the purpose of Neb. Rev. Stat. § 28-1439.01 (Reissue 1995), if the witness is corroborated as to material facts and circumstances which tend to support the testimony as to the principal fact in issue.

4. Criminal Law: Corroboration: Testimony. The testimony of a cooperating individual need not be corroborated on every element of a crime.

5. Convictions: Evidence: Appeal and Error. Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction.

6. Criminal Law: Convictions: Evidence: Appeal and Error. When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, the relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Appeal from the District Court for Butler County: Mary C. Gilbride, Judge. Affirmed.

Kirk E. Naylor, Jr., and Kevin Oursland for appellant.

Jon Bruning, Attorney General, and Kevin J. Slimp for appellee.


CASSEL, Judge.


Following a bench trial, the district court adjudged Daniel T. Kuta guilty and sentenced Kuta on two convictions of delivery of a controlled substance. Because we find that the State corroborated the testimony of the cooperating individual and presented sufficient evidence, we affirm.


Thomas Hayes, an investigator with the Nebraska State Patrol, obtained cooperation from Lindsay Wegner after Hayes acquired evidence that Wegner had sold marijuana. To avoid prosecution, Wegner agreed to assist in making purchases of illegal drugs from two individuals, one of whom was Kuta. Wegner claimed to have previously been acquainted with Kuta.

On August 13, 2002, Wegner told Hayes that Kuta had notified her he had drugs available and that Wegner and Kuta had agreed to meet at Kuta's apartment in David City the following day. On August 14, Wegner met Hayes at the David City airport, where Hayes gave Wegner $120 to purchase controlled substances from Kuta. Prior to Wegner's going to Kuta's apartment, Glayda Scofield, a secretary with the David City Police Department, performed a search of Wegner's body and clothing for controlled substances. Scofield was not a police officer and had no formal training in conducting such searches, but she had previously performed searches of other female persons under the direction of law enforcement officers. Scofield understood that methamphetamine typically was distributed in small, rock-like portions. Scofield took Wegner into a private room and patted down Wegner's outer clothing before having Wegner remove her outer clothing and then patting Wegner down around her bra and crotch regions. Scofield also checked Wegner's hair and feet and behind Wegner's ears. Scofield found no controlled substances.

Hayes and Stephen Sunday, the police chief of David City, searched Wegner's vehicle. They equipped Wegner with a wireless transmitter, which was placed in her pocket, prior to the meeting with Kuta. Sunday had previously verified Kuta's occupancy of the apartment by checking the city's utility records and by talking to Kuta's landlord.

Wegner then drove her vehicle to Kuta's apartment in David City. Hayes and Sunday followed in a separate vehicle, maintaining visual contact with Wegner. Kuta met Wegner in the parking lot of Kuta's apartment building. Hayes previously knew Kuta and was familiar with his vehicle from previous intelligence. Sunday had known Kuta since December 2000. Hayes and Sunday observed Wegner make contact with Kuta and observed as they walked up to the entrance to Kuta's apartment. Kuta and Wegner entered the apartment together. Hayes and Sunday lost visual contact with Wegner and Kuta at that point but monitored their conversation via Wegner's transmitter. At trial, Wegner testified that no one other than she and Kuta was present in the apartment. Hayes and Sunday testified that they recognized the voices of Kuta and Wegner transmitted by the wireless device and that they heard no other voices except as discussed below.

Wegner testified that after she and Kuta entered the apartment, she gave Kuta $120 in exchange for a quantity of methamphetamine. No law enforcement officers were present in the apartment at the time of the transaction. After Hayes and Sunday had heard conversation indicating that the transaction had been made, a former wife of Kuta's approached the apartment from the outside. She went to the door of the apartment and, remaining outside under Hayes' and Sunday's visual surveillance, briefly quarreled verbally with Kuta and then left the premises. Wegner then left the apartment and, followed by Hayes and Sunday, who again maintained constant visual contact with her, drove back to the David City airport, where she delivered the methamphetamine to Hayes. Wegner and her vehicle were again searched. No other controlled substances were found.

A similar transaction was arranged on August 22, 2002, after Kuta and Wegner spoke on the telephone. On this occasion, Wegner arranged to purchase an ounce of marijuana for $120. Again, Wegner informed Hayes and met with Hayes and Sunday prior to going to Kuta's apartment. Wegner and her vehicle were searched prior to the transaction. On that occasion, Patricia Lostroh, the director of the "Butler/Polk County Victim Assistance Unit," performed the pat-down search of Wegner. Although Lostroh was not a police officer, she had previously assisted law enforcement officers in searching female individuals as part of her employment. Lostroh's training to conduct searches came from the local police department and state troopers who had instructed Lostroh on the occasions on which she had assisted them.

Lostroh searched Wegner in a private area of the police department office in David City. Lostroh directed Wegner to take off her shoes, and she inspected Wegner's feet. Lostroh then felt up and down Wegner's legs, first on the outside and then on the inside, between Wegner's legs. Lostroh then felt around Wegner's waistband and inside of the waistband and felt under Wegner's shirt and inside of her bra. Lostroh also felt around Wegner's neck and hair. Lostroh told Wegner to open her mouth, and Lostroh looked in Wegner's mouth. Lostroh touched all of the areas Wegner's jeans covered, including her crotch and pockets, pressing hard enough on Wegner's jeans that she would have felt any concealed substances. Lostroh did the same thing "on top," checking "her back, her front, her breasts, the whole bit." No controlled substances were found. Hayes and Sunday again searched Wegner's vehicle before the transaction. Wegner was again equipped with a wireless transmitter and given $120 with which to make the arranged purchase.

Wegner then drove directly to Kuta's apartment, observed by Hayes and Sunday. Once Wegner arrived at Kuta's apartment, Kuta met Wegner at the doorway and Wegner joined Kuta inside. At this point, Hayes and Sunday lost visual contact with Kuta and Wegner but maintained audio surveillance via the wireless transmitter. They recognized the only voices as those of Kuta and Wegner. Wegner gave Kuta the $120, and Kuta briefly left the apartment and shortly returned with the marijuana, which Kuta then gave to Wegner. Hayes and Sunday had watched Kuta leave through the door to the apartment and start down the steps, losing sight of Kuta at that point until he returned to the stairway shortly thereafter and reentered the apartment. Wegner then returned to her car and proceeded to drive to meet Hayes, Sunday, and Lostroh.

While in the process of exiting the parking lot, Wegner spoke briefly with another woman as both sat in their respective vehicles. Wegner was not close enough to hand anything to or receive anything from the other woman and did not exchange anything with her.

Upon meeting Hayes, Wegner turned over the marijuana. Lostroh again searched Wegner's person, and Hayes and Sunday searched Wegner's automobile. Again, no contraband was found.

The State filed an information charging Kuta with two counts of delivery of a controlled substance. Counts I and II alleged the events of August 14 and 22, 2002, respectively. Kuta pled not guilty and subsequently waived a jury trial. The court conducted a bench trial on September 25, 2003. After deliberation at the conclusion of the trial, the district court adjudged Kuta guilty on both counts. Prior to sentencing, the...

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